A Cruel Arithmetic

Inside the Case Against Polygamy

For thirty years, lawyers, pundits, professors, and politicians had said that section 293 of the Criminal Code of Canada—the criminal prohibition of polygamy—was unconstitutional, a Victorian anachronism that, in a modern rights-based democracy, deserved to be swept aside in the name of individual liberty and religious freedom. Polygamy per se, it was argued, was harmless.

Beginning in 2009 in Vancouver, a small team of lawyers from the federal and provincial governments, along with a handful of allied public-interest groups, set out to prove the experts wrong and to show that there were devastating harms that inevitably flowed from polygamy’s “cruel arithmetic”: harms to women and children, to society at large, and even to the very foundation of democracy itself. The case against polygamy would proceed for almost two years, and was laid out through forty-four days of trial and more than 100 witnesses. The evidence ranged from the testimony of pre-eminent academics to stark and disturbing confessions of polygamists testifying under the shield of anonymity. The eventual 357-page decision of the Chief Justice of the Supreme Court of British Columbia, based on (in his words) “the most comprehensive judicial record on the subject ever produced,” defied all expectations and set the world of constitutional law back on its heels.

This is a remarkable insider’s story of a unique piece of litigation: the first trial-court “constitutional reference” in Canadian history. Craig Jones, lead counsel for the Attorney General of British Columbia, describes the argument he and his colleagues developed against polygamy, drawing from fields as diverse as anthropology, history, economics, and evolutionary psychology. Yet it was ultimately the testimony of real people that showed how the theoretical harms of polygamy’s “cruel arithmetic” played out upon its victims.

A Cruel Arithmetic describes how the author’s own views evolved from scepticism to a committed belief in the campaign against polygamy. This book is also an invitation to Canadians across political, philosophical, and religious spectrums to exercise their curiosity, approach the issue with an open mind, and follow along as the evidence converges to its powerful and surprising conclusion.

CONTENTS

Foreword

Acknowledgements

Introduction

Part 1: Beginnings

Part 2:On Human Nature

Part 3: All Roads lead to Bountiful

Part 4: A Case for the Trial Court

Part 5: Trial Diary

Part 6: The Case Against Polygamy

Part 7: Decision and AftermathAfterword: The March of the Zombies

Notes

Index

REVIEWS

There has never been a trial quite like the Polygamy Reference. As Jones suggests, there may never be one like it again. I feel much the same way about this book. Hugely informative, sharply argued, warmly recalled, it is every bit as extraordinary as the trial it recounts.

from the Foreword by Andrew Coyne

In this highly readable book, Craig Jones provides an insider’s view of the constitutional reference case on Canada’s polygamy law. He captures what those of us who followed the trial saw — this wasn’t really a battle between progressives and conservatives, or even between secular advocates of women’s and children’s rights and religious fundamentalists; at least in the courtroom, the struggle over whether polygamy should be decriminalized or even legalized was a struggle among feminists, civil libertarians, legal academics, and progressives, who in different contexts and in earlier years had all cleaved to the notion that the government has no business in the bedrooms of the nation. But in this case, it does.

Daphne Bramham, Vancouver Sun columnist and author of The Secret Lives of Saints: Child Brides and Lost Boys in Canada’s Polygamous Mormon Sect

A Cruel Arithmetic describes this major Canadian constitutional argument in more detail than I’ve seen in any other book. The duelling lawyers and their personalities, the clashes within the civil service, the preparation and cross-examination of witnesses — it’s all here. And it is absolutely riveting, especially when Jones describes the dismantling of dubious “expert” witnesses trying to make the case that polygamy is not so harmful. I’d go so far as to say every law student should read it, and many practising lawyers could learn a lot from it, too. I certainly did.